04 October 2011

Should An Irresponsible Lawyer Cost You Your Life?

The transcript of the oral arguments in the U.S. Supreme Court case of Maples v. Thomas have been posted.

In this death penalty case, the death row inmate's collateral state level appeals in Alabama were terminated because his two out of state counsel in New York City left their large law firm with no forwarding address or withdrawal from the representation, and as a result, the notices to them were returned to sender, and they didn't receive actual notice of a critical deadline. His local counsel, who had agreed to a limited representation consisting of nothing more than sponsoring a motion to admit the out of state counsel pro hac vice, seeing that out of state counsel were listed on the certificate of service and having no actual knowledge that their notices were not received, ignored the copy he received. The inmate was unaware that any of this had happened until after the deadline had passed and the prosecutor told him in a letter basically advising him to file a federal habeas corpus action. The State of Alabama successfully opposed any extension of time to meet the deadline based on the improper conduct of the death row inmate's lawyers and won in the Alabama and federal courts through the 11th Circuit (arguably the most conservative in the country on criminal justice issues).

The U.S. Supreme Court in this case has to decide if this screw up by the death row inmate's lawyers mean that the inmate can lose the right to have his appeal considered on the merits.

Justice Scalia, in oral argument vehemently argued that the inmate should be bound because the local counsel received actual notice. The liberal justices clearly saw this case as one where relief should be granted. Justice Thomas was silent, but often tracks Justice Scalia in such matters.

Justices Alito, Kennedy and Roberts seem to be the swing votes in this case. Justice Kennedy, in particular, seemed to be entertaining the notion that the State had a constitutional duty to waive its objections to an extension of time to file the appellate documents in this case.

Both liberal and conservative justices also asked, without receiving a substantive reply, how often death row inmates don't appeal a defeat that allow for their execution.

In a few months, we'll know if the U.S. Supreme Court has taken a hard line that limits the ineffective assitance of counsel defense to almost nothing (which is close to the current status quo), in the interests of finality, or if it will make an exception in this relatively clear cut case.

The issue goes more generally to the global question of how one can have a pure adversary system, where clients are bound by the actions of their lawyers (even their mistakes), in which there is also constitutional right not just to the assistance of counsel, but to the effective assistance of counsel. The clash is particularly great in death penalty cases where a malpractice suit against the ineffective lawyer is not an even plausibly effective remedy in the way that it might be if this were a civil case or a criminal case where the inmate had some hope of eventually being released and enjoying the fruits of a malpractice judgment.